Civilian law
Civil law, or civilian law, is a legal system originating in Europe, intellectualized within the framework of , the main feature of which is that its core principles are into a referable system which serves as the primary source of law. This can be contrasted with systems, the intellectual framework of which comes from judge-made , and gives ial authority to prior court decisions, on the principle that it is unfair to treat similar facts differently on different occasions (doctrine of judicial , or ). Historically, a civil law is the group of legal ideas and systems ultimately derived from the , but heavily overlaid by , , , feudal, and local practices, as well as doctrinal strains such as , codification, and . Conceptually, civil law proceeds from abstractions, formulates general principles, and distinguishes from . It holds secondary and subordinate to . Civil law is often paired with the , but the terms are not synonymous. There are key differences between a and a codal article. The most pronounced features of civil systems are their , with brief legal texts that typically avoid factually specific scenarios. The short articles in a civil law code deal in generalities and stand in contrast with statutory systems, which are often very long and very detailed. Overview The purpose of codification is to provide all citizens with manners and written collection of the laws which apply to them and which judges must follow. It is the most widespread system of law in the world, in force in various forms in about 150 countries. It draws heavily from Roman law, arguably the most intricate known legal system dating from before the modern era. Where codes exist, the primary source of law is the , a systematic collection of interrelated articles, arranged by subject matter in some pre-specified order, that explain the principles of law, rights and entitlements, and how basic legal mechanisms work. Law codes are simply laws enacted by a , even if they are in general much longer than other laws. Other major legal systems in the world include , , , and . Civil law countries can be divided into: * those where Roman law in some form is still living law but there has been no attempt to create a : and * those with uncodified mixed systems in which civil law is an academic source of authority but common law is also influential: Scotland and the countries ( , , and ) * those with codified mixed systems in which civil law is the background law but has its public law heavily influenced by common law: , , and * those with comprehensive codes that exceed a single civil code, such as France, Germany, Greece, Italy, Japan, Mexico, Russia, Spain: it is this last category that is normally regarded as typical of civil law systems, and is discussed in the rest of this article. The Scandinavian systems are of a hybrid character since their background law is a mix of civil law and Scandinavian customary law and they have been partially codified. Likewise, the laws of the ( , , , ) mix and . A prominent example of a civil-law is the (1804), named after French emperor . The code comprises three components: * the law of persons * property law * commercial law Rather than a compendium of statutes or catalog of , the code sets out general principles as rules of law. Unlike systems, civil law jurisdictions deal with case law apart from any value. Civil law courts generally decide cases using codal provisions on a case-by-case basis, without reference to other (or even superior) judicial decisions. In actual practice, an increasing degree of precedent is creeping into civil law , and is generally seen in many nations' highest courts. While the typical decision is short, concise and devoid of explanation or justification, in , the supreme courts can and do tend to write more verbose opinions, supported by legal reasoning. A line of similar case decisions, while not precedent per se, constitute . While civil law jurisdictions place little reliance on court decisions, they tend to generate a phenomenal number of reported s. However, this tends to be uncontrolled, since there is no statutory requirement that any case be reported or published in a , except for the councils of state and constitutional courts. Except for the highest courts, all publication of legal opinions are unofficial or commercial. Civil law is sometimes referred to as neo-Roman law, Romano-Germanic law or Continental law. The expression "civil law" is a translation of Latin jus civile, or "citizens' law", which was the term for its legal system, as opposed to the laws governing conquered peoples ( ); hence, the Justinian Code's title . Civil law practitioners, however, traditionally refer to their system in a broad sense as , literally "common law", meaning the general principles of law as opposed to laws specific to particular areas. (The use of "common law" for the Anglo-Saxon systems may or may not be influenced by this usage.) History Civil law takes as its major inspiration classical (c''. AD 1–250), and in particular (6th century AD), and further expanded and developed in the late under the influence of . The Justinian Code's doctrines provided a sophisticated model for s, rules of procedure, , wills, and a strong al system. Roman law was received differently in different countries. In some it went into force wholesale by legislative act, i.e., it became , whereas in others it was diffused into society by increasingly influential legal experts and scholars. Roman law continued without interruption in the until its final fall in the 15th century. However, given the multiple incursions and occupations by Western European powers in the late medieval period, its laws became widely implemented in the West. It was first received in the partly because it was considered , and it spread in Europe mainly because its students were the only trained lawyers. It became the basis of , though partly rivaled by received feudal . In England, it was taught academically at and , but underlay only and law insofar as both were inherited from canon law, and , adapted from '' through the trade. Consequently, neither of the two waves of Roman influence completely dominated in Europe. Roman law was a secondary source that was applied only when local customs and laws were found lacking on a certain subject. However, after a time, even local law came to be interpreted and evaluated primarily on the basis of Roman law, since it was a common European legal tradition of sorts, and thereby in turn influenced the main source of law. Eventually, the work of civilian s and commentators led to the development of a common body of law and writing about law, a common legal language, and a common method of teaching and scholarship, all termed the , or law common to Europe, which consolidated canon law and Roman law, and to some extent, . Codification An important common characteristic of civil law, aside from its origins in Roman law, is the comprehensive of received Roman law, i.e., its inclusion in civil codes. The earliest known is the , written in ancient during the 18th century BC. However, this, and many of the codes that followed, were mainly lists of civil and criminal wrongs and their punishments. The codification typical of modern civilian systems did not first appear until the Justinian Code. Germanic codes appeared over the 6th and 7th centuries to clearly delineate the law in force for Germanic privileged classes versus their Roman subjects and regulate those laws according to . Under law, a number of private s were compiled, first under the (Très ancien coutumier, 1200–1245), then elsewhere, to record the – and later regional – customs, court decisions, and the legal principles underpinning them. Custumals were commissioned by lords who presided as lay judges over manorial courts in order to inform themselves about the court process. The use of custumals from influential towns soon became commonplace over large areas. In keeping with this, certain monarchs consolidated their kingdoms by attempting to compile custumals that would serve as the law of the land for their realms, as when in 1454 commissioned an official custumal of Crown law. Two prominent examples include the Coutume de Paris (written 1510; revised 1580), which served as the basis for the Napoleonic Code, and the (c. 1220) of the s of and which was used in northern Germany, Poland, and the . The concept of codification was further developed during the 17th and 18th centuries AD, as an expression of both and the ideas of the . The political ideals of that era was expressed by the concepts of , protection of and the . Those ideals required certainty of law, recorded, uniform law. So, the mix of Roman law and customary and local law gave way to law codification. Also, the notion of a implied recorded that would be applicable to that state. There was also a reaction to law codification. The proponents of codification regarded it as conducive to certainty, unity and systematic recording of the law; whereas its opponents claimed that codification would result in the of the law. In the end, despite whatever resistance to codification, the codification of European private laws moved forward. Codifications were completed by Denmark (1687), Sweden (1734), Prussia (1794), France (1804), and (1811). The French codes were imported into areas conquered by Napoleon and later adopted with modifications in Poland ( / ; Kodeks cywilny 1806/1825), Louisiana (1807), Canton of Vaud (Switzerland; 1819), the (1838), (1844), Italy and Romania (1865), Portugal (1867) and Spain (1888). (1900), and (1912) adopted their own codifications. These codifications were in turn imported into colonies at one time or another by most of these countries. The Swiss version was adopted in Brazil (1916) and Turkey (1926). In the United States, s began codification with New York's " " (1850), followed by California's s (1872), and the federal (1874) and the current (1926). In Japan, at the beginning of the Meiji Era, European legal systems—especially the civil law of Germany and France—were the primary models for the judicial and legal systems. In China, the German Civil Code was introduced in the later years of the , emulating Japan. In addition, it formed the basis of the law of the , which remains in force in Taiwan. Furthermore, Korea, Taiwan, and Manchuria, former Japanese colonies, have been strongly influenced by the Japanese legal system. Some authors consider civil law the foundation for used in countries, which in this view would basically be civil law with the addition of ideals. Even if this is so, civil law was generally the legal system in place before the rise of socialist law, and some Eastern European countries reverted to the pre-socialist civil law following the fall of socialism, while others continued using a socialist legal systems. Several civil-law mechanisms seem to have been borrowed from medieval Islamic and . For example, the Islamic (hundi) underlies the avallo of Italian law and the aval of and law. Differentiation from other major legal systems The table below contains essential disparities (and in some cases similarities) between the world's four major legal systems. Civil law is primarily contrasted with , which is the legal system developed first in England, and later among peoples of the world. Despite their differences, the two systems are quite similar from a historical point of view. Both evolved in much the same way, though at different paces. The Roman law underlying civil law developed mainly from customary law that was refined with case law and legislation. Canon law further refined court procedure. Similarly, English law developed from Anglo-Saxon customary law, and , further refined by case law and legislation. The differences are * Roman law had crystallized many of its principles and mechanisms in the form of the Justinian Code, which drew from case law, scholarly commentary, and senatorial statutes * Civilian case law has persuasive authority, not binding authority as under common law , however, is by no means a defining characteristic of a civil law system. For example, the statutes that govern the civil law systems of Sweden and other and the Roman-Dutch countries are not grouped into larger, expansive codes like those in French and German law. Subgroups The term civil law comes from English legal scholarship and is used in English-speaking countries to lump together all legal systems of the jus commune tradition. However, and economists promoting the prefer to subdivide civil law jurisdictions into four distinct groups: *'Napoleonic': France, Italy, the Netherlands, Spain, Chile, Belgium, Luxembourg, Portugal, Brazil, Mexico, other countries, Macau, former in India ( , and ), Malta, Romania, and most of the Arab world when Islamic law is not used. Former colonies include Quebec (Canada) and Louisiana (U.S.). ** is an original work of jurist and legislator . Traditionally, the Napoleonic Code has been considered the main source of inspiration for the Chilean Code. However, this is true only with regard to the s and the (except for the ), while it is not true at all in the matters of family and successions. This code was integrally adopted by Ecuador, El Salvador, Nicaragua, Honduras, Colombia, Panama and Venezuela (although only for one year). According to other Latin American experts of its time, like (author of the "Esboço de um Código Civil para o Brasil") or (main author of the Argentinian Civil Code), it is the most important legal accomplishments of Latin America. **Cameroon, a former colony of both France and United Kingdom, is bi-juridical/mixed *'Germanistic': Germany, Austria, Switzerland, Latvia, Estonia, , Czech Republic, Russia, Lithuania, Croatia, Hungary, Serbia, Slovenia, Slovakia, Bosnia and Herzegovina, Greece, Ukraine, Turkey, Japan, South Korea, Taiwan and Thailand **South Africa, a former colony of the United Kingdom, was heavily influenced by colonists from the Netherlands and therefore is bi-juridical/mixed. *'Nordic': Denmark, Finland, Iceland, Norway, and Sweden *' ' (except Hong Kong and Macau) is a mixture of civil law and socialist law. Presently, Chinese laws absorb some features of common law system, especially those related to commercial and international transactions. Hong Kong, although part of China, uses common law. The Basic Law of Hong Kong ensures the use and status of common law in Hong Kong. Macau continues to have a Portuguese legal system of civil law. However, some of these legal systems are often and more correctly said to be of hybrid nature: Napoleonic to Germanistic influence: The Italian civil code of 1942 replaced the original one of 1865, introducing germanistic elements due to the geopolitical alliances of the time. This approach has been imitated by other countries, including Portugal (1966), the Netherlands (1992), Brazil (2002) and Argentina (2014). Most of them have innovations introduced by the Italian legislation, including the unification of the and s. Germanistic to Napoleonic influence: The is considered mainly influenced by the German civil code and partly influenced by the French civil code. The civil code of the Republic of Turkey is a slightly modified version of the Swiss code, adopted in 1926 during 's presidency as part of the government's progressive reforms and secularization. Some systems of civil law do not fit neatly into this typology, however. developed as a mixture of French and German civil law in the 19th century. After the reunification of Poland in 1918, five legal systems (French Napoleonic Code from the , from Western Poland, Austrian ABGB from Southern Poland, Russian law from Eastern Poland, and Hungarian law from and ) were merged into one. Similarly, , while originally codified in the Napoleonic tradition, has been heavily altered under influence from the Dutch native tradition of (still in effect in its former colonies). 's borrowed heavily from Roman-Dutch law. Swiss law is categorized as Germanistic, but it has been heavily influenced by the Napoleonic tradition, with some indigenous elements added in as well. is primarily a Napoleonic system. is the only partially based on and codes and ultimately , as opposed to English . In Louisiana, private law was codified into the . Current Louisiana law has converged considerably with American law, especially in its , judicial system, and adoption of the (except for Article 2) and certain legal devices of American common law. In fact, any innovation, whether private or public, has been decidedly common law in origin. law, whose private law is also of French civil origin, has developed along the same lines, adapting in the same way as Louisiana to the public law and judicial system of . By contrast, Quebec private law has innovated mainly from civil sources. To a lesser extent, other states formerly part of the Spanish Empire, such as Texas and California, have also retained aspects of Spanish civil law into their legal system, for example . The exhibits similarities to that of Louisiana: a civil code whose interpretations rely on both the civil and common law systems. Because 's Civil Code is based on the Spanish Civil Code of 1889, available jurisprudence has tended to rely on common law innovations due to the code's age and in many cases, obsolete nature. Several Islamic countries have civil law systems that contain elements of . As an example, the of 1810 that developed in the early 19th century—which remains in force in Egypt is the basis for the civil law in many countries of the where the civil law is used— is based on the Napoleonic Code, but its primary author attempted to integrate principles and features of Islamic law in deference to the unique circumstances of Egyptian society. Japanese Civil Code was considered as a mixture of roughly 60 percent of the German civil code and roughly 30 percent of the French civil code and 8 percent of Japanese customary law and 2 percent of the English law. The code includes the doctrine of and a precedent of from English common law system. References Category:Civilization